Officers Timothy Wade, Jeffrey Wade, Steve Huffman, Debbie Gray and Robert Dubie (collectively plaintiffs) were all employed by the city of Blythe as police officers. The city informed each of the officers in the years 2000 or 2001, that they were the subject of complaints being investigated by the Internal Affairs department. More than one year after the notifications, the officers were notified that the closed investigation reports would be placed into their personnel files. The investigations were closed only after demands from this author based on the passing of time limits under Govt. Code § 3304 (d). I filed a petition for writ of mandate claiming that the city’s placement of the internal investigation reports into the personnel files constituted punitive action, which was barred by the statute of limitations. We concurrently filed a request for injunctive relief. After a hearing on August 16, 2002, the trial court entered a judgment finding that insertion of the reports into the officers’ personnel files was punitive and therefore violated Government Code section 3304, subdivision (d), enjoining the city from placing the reports in the personnel files, and ordering the city to remove any such reports from the officers’ personnel files. It also awarded attorney fees and costs.
The city appealed to the California Fourth District Court of Appeal, which recently, in an unpublished decision, ruled in favor of the officers, awarded costs, and sent Castle, Petersen & Krause back for additional attorney’s fees on behalf of the officers and the Legal Defense Fund.
This case arose when the Blythe police administration refused a demand to remove the offending materials from the officers’ respective files. The city, in essence, cried…what are we to do with them? We took the position that was their problem, caused by their failure to simply obey the law. This was not an onerous burden to a police administration we thought. We sued and they lost.
We reasoned that since the one-year statute of limitations under Govt. Code § 3304 (d) had passed, no punitive action could be taken, and that the placing of the uncompleted IA reports into the files amounted to punitive action even though no findings were made.
The city claimed its hands were tied and notwithstanding government code protections of the officers, it had to maintain the materials in the personnel files.
The Fourth District Court of Appeal wrote:
“City claims that the trial court’s order was erroneous because (1) it was required by law to maintain the records in the plaintiffs’ personnel files, and (2) placement of the reports into the personnel files did not constitute punitive action (the courts examined and rejected both of these contentions).
City cites Penal Code sections 832.8 and 832.5, Government Code section 34090, Aguilar v. Johnson (1988) 202 Cal.App.3d 241 (Aguilar), Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703 (Miller) and Pitchess v. Superior Court (1974) 11 Cal.3d 531 for the proposition that it was required by law to insert the investigation reports into the officers’ personnel files (the court reasoned that)…none of these authorities bears such a mandate…that;
1. Penal Code section 832.8 simply defines the documents that are considered personnel records for purposes of maintaining confidentiality. It does not require that investigation reports must be maintained in an officer’s personnel file. Rather, it merely states that when such reports are maintained, they are considered confidential under Penal Code section 832.7.
2. Penal Code section 832.5 pertains to the maintenance of citizen complaints regarding department or agency personnel. The city points to the requirement in subdivision (b) that citizen ‘complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years’ as mandating that such reports be kept in an officer’s personnel file. However, that subdivision also states that all such retained complaints ‘may be maintained either in the peace or custodial officer’s general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. However, prior to any official determination regarding promotion, transfer, or disciplinary action by an officer’s employing department or agency, the complaints described by subdivision (c) shall be removed from the officer’s general personnel file and placed in [a] separate file designated by the department or agency, in accordance with all applicable requirements of law.’ An officer’s general personnel file is the one ‘maintained by the agency containing the primary records specific to each peace or custodial officer’s employment, including evaluations, assignments, status changes, and imposed discipline.’ (Pen. Code, § 832.5, subd. (d)(1).) These general personnel files are apparently the ones at issue in the instant case. Thus, rather than mandating that complaints be kept in the officer’s personnel file, Penal Code section 832.5 specifically authorizes them to be maintained elsewhere, and even mandates that they be kept elsewhere for purposes of determining promotion, transfer, or disciplinary action. It further requires that complaints found to be frivolous, unfounded or exonerated ‘shall not’ be kept in the general personnel files. (Pen. Code § 832.5, subd. (c).) Further, simply because the records are ‘deemed’ personnel records for purposes of the California Public Records Act (Govt. Code, § 6250 et seq.) and Evidence Code section 1043 (involving Pitchess motions), it does not follow that they must be maintained in the officer’s general personnel file. Deeming them such for certain limited purposes does not require that they be so considered for all purposes.
Similarly, Government Code section 34090 requires that city records be maintained for at least two years and allows the destruction of city records, with legislative approval and written permission of the city attorney only after that time has passed. Again, assuming that the subject documents are city records under this code section, though they are required to be maintained, Government Code section 34090 does not require that they be kept in the officer’s personnel file.
In summary, none of the authorities cited by the city imposes a legal mandate that the reports at issue be maintained in the plaintiff’s general personnel files. This argument does not support a reversal of the trial court.”
The city took a shotgun approach in defending it’s unlawful actions. The Court of Appeal, at length and in detail, shot down each “doom and gloom” argument the city made. The points are too lengthy for one article. Probably the most important finding by each court was that the materials alone constituted “punitive action” under the P.O.B.R.
We cited numerous authorities in our pleadings, all of which were adopted by the court in its written decision. In short, the court ruled there need not be an adverse finding by the agency. Rather, the mere placement of the investigative materials into the files was punitive under the code. Since the placement was after the one-year statute, the materials must be removed.
While the court declined to publish this particular case its findings are instructive on how to approach similar future violations. The law firm of Castle, Petersen & Krause is happy to share the decision with associations facing this dilemma.
About the Author: Bob Krause is a partner in the law firm of Castle, Petersen & Krause LLP, Newport Beach/Temecula. A retired sergeant and P.O.A. activist from Oceanside P.D., Krause has been representing peace officers’ interests for more than 20 years.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
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- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- Christopher Adams Modesto POA
Thank you for all your help!
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- James Hika Border Patrol Supervisors Association
They did a great job!
- Joseph Barrett LA Airport POA
I was very well represented by a professional. I felt well represented and got great advice.
- Dennis W. Ostini Lake County DSA
[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- John Dougherty National City POA
My LDF Representative was [Representative]. He did an outanding job with my case and I am overjoyed with the results.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- James F. Beland Lake County SDA
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
- Kristen Patterson Contra Costa Co Prob. Assn.
[My representative] was helpful and made me feel supported. I got the results I desired. Very pleased with the process.
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Andrew Hill Statewide University PA
I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- Paul Barrolaza Twin Cities POA
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Christopher Wells Hollister POA
My rep was great.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Heather Fontes San Joaquin Co POA
I appreciated the thorough follow up by LDF staff. Many thanks and blessings for the work by LDF.
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Joe Charvez Santa Clara Co DSA
I could not be happier with the interest, work put into my case, and assistance from [my representative]. Thanks !!
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Jurell Snyder Oakland POA
My LDF representative had a power point presentation, which was extremely professional.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.